The purpose of this paper is to explain some legal problems associated with the use of computer-generated records in evidence before courts and administrative tribunals, to propose options for a Uniform Electronic Evidence Act and to solicit comments on those options.

The Uniform Law Conference of Canada proposes to hold its consultation on these options during the spring of 1997, with a view to preparing a draft statute by June for adoption at its annual meeting in August.

We would like your help in making this the best statute possible. Would you please send comments no later than April 30, 1997, to the

Uniform Law Conference of Canada 622 Hochelaga, Ottawa, Ontario K1K 2E9, fax (613) 941-4165, or by e-mail to John Gregory at
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.

Technical background readings are available on this subject. In particular the Uniform Law Conference has published three substantial works on electronic evidence; they were published in the Uniform Law Conference of Canada Proceedings for 1994 1995 and 1996. Other sources are cited in those works.

BACKGROUND

MAJOR CONSIDERATIONS

ADMISSIBILITY

Authentication

Best Evidence Rule

In Favour of an Integrity Test for Admissibility

Against an Integrity Test for Admissibility

Options for Best Evidence Rule

Hearsay

WEIGHT

MINIMUM STANDARDS

National Standard

Digital Signatures

TRADING PARTNER AGREEMENTS

CONCLUSION

Background

[1] The proliferation of computers has created a number of problems for the law. Many legal rules assume the existence of paper records, of signed records, of original records. The law of evidence traditionally relies on paper records as well, though of course oral testimony and other kinds of physical objects have always been part of our courtrooms too.

[2] As more and more activities are carried out by electronic means, it becomes more and more important that evidence of these activities be available to demonstrate the legal rights that flow from them.

[3]The law is not badly broken as it stands. Most electronic records are in practice being admitted in litigation. However, courts have struggled with the traditional rules of evidence, with inconsistent results. The common term "reliability" has caused confusion between the principles of authentication, best evidence, hearsay and weight.

[4]What is worse, many records managers and their legal advisors have not been confident that modern information systems, especially electronic imaging with the paper originals destroyed, will produce records suitable for use in court.

[5]The uncertainty is beginning to lead to a proliferation of narrowly focused laws by which various government departments across the country authorize the use of the records from their own computer systems or in dealings between those departments and the part of the public they regulate. This creates a serious risk of incompatibility of information systems, even within the same jurisdiction.

[6] Likewise, some provinces have legislated on electronic evidence, but not consistently with each other. As a result, businesses active in more than one jurisdiction may have to keep records differently for use in different parts of the country.

[7] The Uniform Law Conference of Canada (ULCC) believes that the law should be modernized, clarified, and harmonized so that public and private sectors alike can make the best technical decisions possible about how to produce and keep records, with a minimum of uncertainty about how their legal rights will be affected.

[8] In reviewing proposals for law reform, the Conference must balance a number of factors: the nature of the threshold that should apply to the admissibility of electronic evidence; the burden of proof on the proponent or opponent of the evidence; and the procedural requirements to ensure a proper examination of electronic evidence adduced before the court.

[9] In short, the law should accommodate the use of technology. It should also be neutral as to technology: people should be able to choose to use paper or any form of technology without prejudice to their legal rights. In fact, technology evolves so quickly that any law tied too closely to a particular technology risks being out of date almost before it is enacted.

[10] This does not mean that technology can be applied without regard to form. It means that the way the law will apply to technological choices should be as certain as possible, so those choices can be made for practical reasons.